SELECT CHARACTER EVIDENCE POINTS

I.          Introduction

            A.        Character evidence can come in 3 different mediums, but not all of these mediums are available in all circumstances.  These mediums are:

                        1.         Reputation

                        2.         Opinion

                        3.         Acts

            B.         General Exclusionary Rule (GER) -- Rule 404(a) says that character evidence is inadmissible for the purpose of proving a person acted in conformity with that character on the occasion in question.

            C.        3 primary ways to circumvent the GER

                        1.         Offer the evidence for a purpose other than to show conformity.  Obviously, this purpose must be material, relevant, and pass Rule 403.

                        2.         Offer the character evidence for the purpose of showing conformity under the 3 exceptions to the GER.  These exceptions are:

                                    a.         404(a)(1) – Character of accused -- aka, “Mercy rule.” 

                                    b.         404(a)(2) – Character of victim – will cover later

                                    c.         404(a)(3) – Character evidence for purpose of impeachment – i.e., you can use character evidence to suggest that the witness on the stand does not tell the truth.  We will cover this in detail later.

                                    d.         413, 414, 415 – Sexual offense cases – will cover next class.

                        3.         Rule 405(b) cases – This is the rare case when character is an essential element in the case and must be proven by one of the parties.

II.         Character of accused (“Mercy Rule”)

            A.        Rule – Rule 404(a)(1) says a criminal defendant can offer his good character as substantive evidence that he did not commit the crime.  In other words, he has good character, and he acted consistent with this good character on the occasion in question.

            B.         Mediums – Under the federal rules, the mercy rule can be activated with reputation and opinion evidence.  Accordingly, a criminal defendant cannot use his past good acts as proof that he acted in conformity with that good character on the occasion in question.  He must use reputation and opinion evidence.

            C.        Mercy Rule procedure

                        1.         Unless it is a 405(b) case where character is an essential element of the case from the outset (which we will discuss later), the character of a criminal defendant is NOT at issue at the outset of the case.  A criminal defendant, however, can inject character into the case by activating the mercy rule under Rule 404(a)(1).

                        2.         The standard way to activate the mercy rule is to call character witnesses to testify about the defendant’s reputation in the community for a pertinent trait, or the witnesses’ opinion about the defendant for a pertinent trait.  A pertinent trait is one that is relevant to the crime.

                        3.         For a “reputation” character witness, the defense lawyer must lay the foundation to show that the witness has sufficient contacts with a particular community, and that the accused has formed a reputation in that community.  The lawyer then asks the witness to describe the defendant’s general reputation in that community for the pertinent trait.

                        4.         For an “opinion” character witness, the defense lawyer must lay the foundation to show that the witness has sufficient enough contacts with the defendant to have formed an opinion about the defendant.  The lawyer then asks the witness for his opinion about the defendant with regard to the pertinent trait.

                        5.         The mercy rule can also be activated by “opening the door.”

                        6.         After the defense character witness is finished with his direct testimony, the prosecution can cross examine the witness.  During the cross-examination, the prosecution can ask the witness whether the witness is aware of specific acts of the defendant inconsistent with the testimony the witness just gave.  (See 405(a), last sentence).  These questions are to impeach the character witness, and are not considered substantive evidence.  The acts the prosecution asks about must meet the following elements:

                                    a.         The prosecution must have a good faith basis that the acts actually occurred (i.e., he can’t just make things up).

                                    b.         The acts must be relevant to the character trait at issue.

                                    c.         The prosecution must have a good faith basis that the acts affected the defendant’s reputation in the community (or, if an “opinion” character witness, that the acts would reasonably affect a person’s opinion for the trait).

                        7.         The prosecution can rebut with its own character witnesses in its rebuttal case.  The same rules for the defendant’s character witnesses apply, but the prosecution’s witnesses would give negative testimony about the pertinent trait.

             D.       Alabama Mercy Rule – There are 2 differences in the Alabama rule:

                        1.         Alabama does not allow opinion evidence for the mercy rule.

                        2.         Alabama will allow evidence about an accused’s general reputation, i.e., while attaching a pertinent trait is allowed, it is not necessary.